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CHEMICAL TESTING WARNINGS AND REPORT OF 9909 '1
REFUSAL TO SUBMIT TO CHEMICAL TESTING AS
AUTHORIZED BY OF THE VEHICLE CODE
611 (~
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Rc= fUSED
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SECTION 1541
NAME
MIDDLE
SEX
DATEOf' .,ATH
WOI'iTH
5
STATE ZIP CODE
LAST CORWIN
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STA E
CITY
fJ (I 17337
SOCIAL SECUAITY NUMBER
4
1. PJeue be advised that you are now under arrest for driving under thelnnuence 01 alcohol or a controllod Jubltance purluantlo section 3731 of
the Vehicle Code. uRI N f
2. I am requesting that you submit to a chemical lest of () (broath8@. Officer chooses the chemicallBII.)
3. II il my duty. as a police ollicer, to inform you that if you refuso to submit 10 e chemical teslyour operating priyjlege will be suspended tor a
period 01 ons year.
4. a) The constitutional rights you have as a criminal defendant, commonly known as the Miranda Rights, including the right to speak with a lawyer and
the right to remain silent. apply only to criminal prosecutions and do nol apply 10 the chomicallesting procedure under Pennsylvania', Implied
Consent Law. which is a civil. nol a criminal proceeding.
b) You have no righlto speak 10 a lawyer, or anyone else, before taking Ihe chemical lest requested by the police officer nor do you tlave a rig hi 10
remain silenl when asked by the police officer 10 submit 10 ttle ctlemicallesl. Unless you agree 10 submillO tho lest requesled by ttle police aHicer
your conducl will be deemed to be refusal and your operating pdvilege will be suspended for one year.
c) Your refusal 10 submillo chemicaltesling under the Implied Consent Law may be inlroduced inlo evidence in a criminal prosecution for driving
while under the inlluence of alcohol or a controlled substance.
J certify thai I have read the above warning to the m
nily to submit to chemicallesting.
Signature 01 Officer:
I have been advised of Ihe above.
Signature 0' Motorist:
MOlonst relused to sign, alter being advised. . ~ / ) ._LL- / J1-
SignatureofOfficer:'U'..t!I'.A1vr1 ~
Dale:
Date:
~~/1'i
AFFIDAVIT
1. The above molorisl was placed under arresllor driVing under the influence 01 alcohol or a controlled substance in violation of Seclion 3731 of the
Vehicle Code, and Ihere wore reasonable grounds to believe lhallhe above mOlorist had been driving, operating or in actual physical control of
Ihe movement of a motor vehicle while under the influence 01 alcohol or a controlled subslance or bOlh.
or
Thai the above named molorist was involved in an accident in which Ihe operator or passenger of any vehicle involved or a pedes Irian required
treatment at a medical facilily or was killed.
2. The above molori~1 was requested 10 submit 10 chemicallesling as authorized by Section 1547 of the Vehicle Code.
3. The above motorisl was informed by a police officer of lhe chemicaltesl warnings contained in paragraph 3 and 4 above.
4. The aboVe named molorist refused to submillo chemical testing.
OFFICER NOTE: The refusal 10 sign Ihls form I. nol a refuaallo submit to the chemical lei I. You mUll ,till give Ihe molorl,tln opportu.
nlly 10 I.ke the chemlcl:Ilteslafter reviewing Ihls form. If the Indlvldull wu operating I commerciI I molor vehicle while having any
alcohol or a controlled subst,nce In tholr system, you must olso completo the r.ve~ ~ 0' this '1rm:.J. / _ '/J.
SUBSCRIBED AND SWORN . . OllicerSignature:~tJ1#1 ~ ~
Z TO BEF'ORE M . MO. DAY YEAIl
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Ollicer Name: W;9/r'RE/V ~C)rr
Q?I?/l-'E,c lOlLS
(Type arPrinl)
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737-/S7d
Mailing Address 2/9'1 t"l/~t./l/V r ::STREET
CIJmp illU , jJ,4 J70//
,
Jurisdiclion:ClJmP HILL ft:f.lc t3
Badge Number:
Pbone: ( 7/7)
Forward to:
Departmenl of Transportation
Bureau of Driver Liconsing
P.O. Box 60031
Harrisburg, PA 11106.0037
Nato: Any portinent lacts not covered by lhe alfidavil should be submitted On a
separale sheet and auached here 10. That sheet should include lhe names 01
additional wilnesses necessary to prove the elements to which you have altested.
ADDITIONAL SUPPLIES OF THIS FOHM MAV AE SECUPED BV COMPl.ETlNG FOAM OS.5~ 1A
THIS FORM MAY BE DUPLICATED
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RODNEY LYMAN CORWIN,
PETITIONER
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
v.
NO. 99-2392
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
RESPONDENT
LICENSE SUSPENSION APPEAL
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the Motion for Continuance upon the
person, and in the manner, indicated below, which satisfies the requirements of the Pennsylvania
Rules of Civil Procedure:
By first class mail, prepaid, addressed to:
Patrick F. Lauer, Jr., Esquire
2108 Market Street
Camp Hill,PA 17011
Ge!:~ab~C
Assistant Counsel
Department of Transportation
Riverfront Office Center
11 0 I South Front Street
Harrisburg, P A 171 04-2516
(717) 787 -2830
DATE: July 21, 1999
RODNEY LYMAN CORWIN,
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
LICENSE SUSPENSION APPEAL
COMMONWEALTH OF
PENNSYLVANIA,
DEPARTMENT OF
TRANSPORTATION, BUREAU
OF DRIVER LICENSING,
Appellee
No. 99-2392 CIVIL TERM
ORDER OF COURT
AND NOW, this 6th day of October, 1999, upon
consideration of Appellant's Appeal of License Suspension,
and following a hearing at which the issue for
determination by the Court was whether Appellant validly
refused to submit to chemical tests of his blood and urine,
Appellant's appeal is denied, and Appellee's suspension of
Appellant's driving privilege by notice dated April 8,
1999, is affirmed.
By the Court,
Patrick F. Lauer, Jr.,
For the Appellant
George Kabusk, Esquire
For the Appellee
Esquire
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RODNEY LYMAN CORWIN,
Appellant
.
.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
:
.
.
v.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellee
Appeal of Operators License
Suspension - Chemical Test
Refusal
AND NOW this
ORDER OF COURT
~ day of v1 po, i
1999, upon
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consideration of the within APPEAL OF OPERATORS LICENSE SUSPENSION,
it is hereby ordered that a hearing shall be held regarding this
matter at on the q..a., day of (}../J r"~ 1999 at 1-: 3 0
a.m./p.m. in Courtroom No. / of the Cumberland County
~
Courthouse, Carlisle, Pennsylvania.
A supersedeas is granted pursuant to Vehicle Code Section
l550(b) (1) until such time that this honorable court resolves this
appeal.
BY THE COURT:
J.
Distribution:
-PA Dept. of Transportation, Office of Chief Counsel, Room 103,
Transportation & Safety Building, Harrisburg, PA 17120
-Patrick F. Lauer, Jr., Esq., 2108 Market st., Camp Hill, Pa 17011
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ROONEY LYMAN CORWIN,
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
.
.
NO. 1')- J j9.2 (~(:'Li:
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v.
.
.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellee
Appeal of Operators License
Suspension - Chemical Test
Refusal
APPEAL OF LICENSE SUSPENSION
AND NOW comes the Appellant, Rodney Lyman Corwin, by and
through his attorney, Patrick F. Lauer, Jr., Esquire, and
respectfully avers the following:
1. Appellant resides at 381 North 48th Street, Harrisburg,
Dauphin County, Pennsylvania 17111.
2. The Appellant received a notice dated April 8, 1999 that, as
a result of his alleged violation of Pennsylvania Vehicle
Code Section 1547, Chemical Test Refusal, his driving privilege
was being suspended for a period of one year, effective suspension
date May 13, 1999, at 12:01 a.m. A true and correct copy of the
Notice is attached as Exhibit "A".
3. The Appellant submits that the police officer lacked a
reasonable basis to request Appellant to submit to a chemical
test.
4. The Appellant submits that he did not intelligently and
voluntarily refuse to submit to a chemical test.
EXHIBIT A
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COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau ot Driver Licensing
Harrisburg, PA 17123
APRIL 08, 1999
[
RODNEY CORWIN
361 N 46TH STREET
990916114546709 001
04/01/1999
22471764
05/16/1969
HARRISBURG PA
17111
Dear Motorist:
As a result ot your violation ot Section 1547 ot the
Vehicle Code, CHEMICAL TEST REFUSAL on 03/21/1999, your
driving privilege is being SUSPENDED tor a period of 1
YEAR(S).
In order to comply with this sanction you are required to
return any current driver's license, learner's permit andlor
temporary driver's license (camera card) in your possession
no later than the effective date listed. It yoU cannot
comply with the requirements stated above, you are required
to submit a DL16LC Form or a sworn affidavit stating that
you are aware of the sanction against your driving privi-
lege. Failure to comply with this notice shall result in
this Bureau referring this matter to the Pennsylvania State
Police for prosecution under SECTION 1571(a)(4) of the Ve-
hicle Code.
Although the law mandates that your driVing privilege is
under suspension even if yoU do not surrender your license,
Credit will not beqin until all current driver's lic..nse
product(s), the DL16LC Form, or a letter aCknOWledging your
sanction is received in this Bureau.
WHEN THE DEPARTMENT RECEIVES YOUR LICENSE OR ACKNOWLEDGE-
MENT, WE WILL SEND YOU A RECEIPT. IF YOU DO NOT RECEIVE THIS
RECEIPT WITHIN 15 DAYS CONTACT THE DEPARTMENT IMMEDIATELY.
OTHERWISE, YOU WILL NOT BE GIVEN CREDIT TOWARD SERVING THIS
SANCTION.
The effective date of suspension is 05/13/1999, 12:01 a.m.
********************************************************************
IWARNING: If you are convicted for driving while your license is I
Isuspended, the penalties will be: not less than 90 days imprison-I
Iment and a 1,000 fine and an additional 1 year suspension, I
********************************************************************
I N D E X T 0 \</ I T N E S S E S
FOR COMMONWEALTH DIRECT CROSS REDIRECT RECROSS
Warren Cornelious 4 16
FOR THE APPELLANT DIRECT CROSS REDIRECT RECROSS
Rodney Corwin 21 28 31
Richard Corwin 34
***********************************************
I N D E X TOE X H I BIT
FOR THE COMMONWEALTH
No. 1 - DL-26 form
MARKED
3
ADMITTED
16
FOR THE APPELLANT
None
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October 6, 1999
Courtroom No. 1
9:33 a.m.
(Whereupon, Commonwealth's Exhibit No.1 was
marked for identification.)
MR. LAUER: Morning, Your Honor.
THE COURT: Good morning. This is the time
and place for a license suspension appeal hearing in the
case of Corwin v. Commonwealth of Pennsvlvania, Deoartment
of Transoortation at No. 99-2392 CIVIL TERM. We will let
the record indicate that the Appellant is present in court
with his counsel, Patrick F. Lauer, Jr., Esquire. The
Commonwealth is represented today by George Kabusk,
Esquire. Are counsel ready to proceed?
MR, LAUER: We are, Your Honor. The only
thing I want to do for the record is, we are going to
withdraw the issue on whether or not tnere was a reasonable
r
18 basis to have requested it. The only issue from your point
19 would be as to whether or not the Defendant's actions
20 constitute a refusal.
21 THE COURT: All right.
22 MR. KABUSK: Your Honor, if we could have
23 leave to go into some of that to make the complete story,
24 we won't dwell on it.
25
THE COURT: To the extent that it's relevant
3
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1 to the issues, you may.
2 MR. KABUSK: Yes, Your Honor. We're ready
3 to proceed then, Your Honor. By official notice dated and
4 mailed April 8th, 1999, the Department of Transportation
5 notified the motorist, operator's number 22471784, that as
6 a result of his violation of Section 1547 of the Vehicle
7 Code, chemical test refusal, on 3/21/99, his driving
8 privilete was being suspended for a period of one year.
9 The Department now calls Officer Cornelious.
10 Whereupon,
11 WARREN SCOTT CORNELIOUS
12 having been duly sworn, testified as follows:
13 DIRECT EXAMINATION
14 BY MR. KABUSK:
15 Q Officer Cornelious, please state your name
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and spell your last name.
A My name is Warren Scott Cornelious.
C-o-r-n-e-I-i-o-u-s.
Q And where are you employed?
A I'm currently employed as a uniform patrol
officer in the Borough of Camp Hill, Cumberland County.
Q During the course of your official duties,
have you had an occasion to investigate an alleged incident
of DUI on or about March 21st of 1999?
A Yes, I have.
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Q Could you tell the Court about that
incident?
A It was Sunday, March 21st, 1999, at or about
3:26 a.m. I was in front of the Sheetz store located at
1715 Market Street in the Borough of Camp Hill, Cumberland
County, completing a traffic stop with an earlier violator,
at which time I heard a vehicle that seemed to be traveling
westbound squealing his tires, and the vehicle then crested
the hill. And it was noted that the vehicle at that time
was straddling the center line of the roadway. As it
crested the hill, as I stated, it was squealing the tires.
The vehicle then moved right back into its
proper lane of travel as it passed me, and continued to
travel westbound on Market Street. At that time I got back
into my patrol car, negotiated a three-point turn on the
roadway, and began accelerating in an attempt to catch up
to that vehicle. I was able to catch up to the vehicle in
the 2000 block of Market Street to approximately four car
lengths, and began pacing it utilizing the digital
speedometer on the patrol car that I was assigned that
evening, which was car four, which was tested by Raybold
Service Center.
I continued to follow that vehicle
westbound, and once in the 2600 block of Market Street, the
vehicle drifted left and began straddling the center line
5
1 of the roadway. At that time I had followed the vehicle
2 four-tenths of a mile, and it was determined that it was
3 traveling 43 miles per hour in a properly posted 25
4 mile-per-hour speed zone. I then activated my emergency
5 warning lights in an attempt to stop the vehicle.
6 The vehicle then activated its turn signal
7 and negotiated a right turn to begin traveling south on
8 South 27th Street. South 27th Street, in that block, is a
9 one-way roadway going north. At that time I activated my
10 siren and went down South 27th Street after the vehicle,
11 and it did eventually yield my warning and come to a stop
12 on the crosswalk and the roadway located on South 27th
13 Street at Chestnut Street.
14 I then approached the driver's side of the
15 vehicle and requested the driver to exhibit his driver's
16 license, registration, and insurance card. The driver
17 began to remove his driver's license from the wallet in
18 which it was stored, and it was noted that his actions were
19 slow and deliberate, and he was having difficulty grasping
20 the document.
21 The driver even dropped his wallet onto the
22 driver's side floorboard and was having difficulty
23 picking--
24 MR. LAUER: I'm going to object to all of
25 this because we agree there was a reasonable basis to
6
2
THE COURT: Mr. Kabusk.
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request.
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MR. KABUSK: Well, I believe some of this is
4
relevant, if he's contending that there was no refusal.
5
I'd like to get out some facts regarding the state of the
6
motorist.
7
THE COURT: All right.
8
THE WITNESS: Mr. Corwin then did reach down
9
and was having difficulty picking up his wallet, but he was
10 eventually able to do that, and provided me with his
11 Pennsylvania driver's license, and was identified from that
12 document as Rodney Corwin. The gentleman is seated to the
13 left of Mr. Lauer today.
14 Mr. Corwin then advised me that he needed to
15 shut his vehicle off since his registration and insurance
16 card was in his glove box, which was locked. He proceeded
17 to turn his vehicle off, remove the key, and was having
18 difficulty putting the key into the key hole to unlock the
19 glove box. As Mr. Corwin spoke, I could detect an odor of
20 an alcoholic beverage emanating from him, and noticed that
21 his eyes were bloodshot and glassy in appearance. His
22 voice was raspy, and his speech was slurred.
23 He was then able to get his registration
24 card from the glove box and provided it to me. When asked
25 where he was coming from this evening, Mr. Corwin advised
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me that he was coming from New Cumberland. When asked how
much he had to drink this morning, Mr. Corwin advised that
he had consumed a few beers. I then requested Mr, Corwin
step from the vehicle so that I could administer the
standardized field sObriety tests to him.
He did comply with my request. And even out
of the vehicle, I could still detect an odor of an
alcoholic beverage emanating from him, I proceeded to
administer the standardized field sobriety tests with the
following results.
While administering the horizontal gaze
nystagmus, I noted--
MR. LAUER:
THE COURT:
MR. KABUSK:
Objection to HGN test.
Mr. Kabusk.
Your Honor, I'm going-- I would
request leave that he may testify to it regarding the
reason why he asked for the test.
MR. LAUER: Which I think he's laid a
foundation, Your Honor, why he asked for it. He smelled
the odor of alcohol and the driving. But the results of
the HGN, I would submit, there's no foundation, number one,
being unreliable; two, I already submitted that he had
probable cause or reasonable basis to have stopped him.
He's had a reasonable basis to request him to do it.
I don't think there's any basis-- I don't
8
1 care if he gets in the other field sobriety tests, which I
2 think is not relevant, but specifically the HGN test, I
3 would object to,
4 THE COURT: Mr. Kabusk.
5 MR, KABUSK: It goes to his reasonable basis
6 of why he asked for a particular test. He asked, if you'll
7 note, it will later come out that he asked for blood and
8 urine test, and I would like to lay a foundation why he
9 asked for both tests.
10 THE COURT: Mr. Lauer, you're not contesting
11 the request for the test?
12 MR. LAUER: No, sir.
13 THE COURT: Given that, I don't think it's
14 necessary, Mr. Kabusk.
15 MR. KABUSK: Okay.
16 THE COURT: Unless some part of the refusal
17 has to do with the form of the test requested.
18 MR. LAUER: No.
19 MR. KABUSK: I didn't know what his issue
20 was. I just wanted to lay a foundation of why the two
21 tests were requested.
22 THE COURT: There's no argument being made
23 that two tests should not have been requested, Mr. Lauer?
24 MR. LAUER: No, sir.
25 THE COURT: All right.
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BY MR. KABUSK:
2
Please proceed.
Q
.i
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A
I then administered the walk and turn test
4
to Mr. Corwin, and I noted that he could not keep his
5 balance. He started the test too soon. He missed
6 heel-to-toe on the way out between steps two, three; and on
7
the way back, between steps seven, eight. During the
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one-leg stand test, I noticed Mr. Corwin swayed from 11 to
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21 seconds, and 21 to 30 seconds. I noted that he raised
,
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10 his arms, as to if to balance, between 11 to 21 seconds,
11 and 21 to 30 seconds.
12 I noted that he hopped between 11 to 21
13 seconds. And I noted that he placed his foot down once
14 between 0 to 10 seconds, once between 11 to 21 seconds, and
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15 twice between 21 to 30 seconds.
16
I also noted during that test that Mr.
17 Corwin counted repetitively. Upon completion of the
18 standardized field sobriety tests, Mr. Corwin had shown
19 signs of intoxication on all of the tests that I
20 administered to him, leading me to believe that he could
21 not safely operate a motor vehicle.
22 And at or about 0340 hours, 3:40 a.m., I did
23 place him under arrest for DUI, handcuffed him, and placed
24 him in the rear of my patrol car. Mr. Corwin was then
25 transported to the Harrisburg Hospital, where he would be
10
1 requested to submit to a chemical test of his blood and of
2 his urine. Upon arrival at the Harrisburg Hospital, we
3 were placed in the emergency room waiting area to await
4 registration.
5 Registration took approximately 35 minutes
6 that morning since the hospital was really busy. And after
7 about 10 to 15 minutes, Mr. Corwin became belligerent with
8 me and requested to get a drink of water. I advised Mr.
9 Corwin that I could not permit him to get a drink of water
10 until after I had obtained the chemical test, and then he
11 would be able to get a drink of water. And this seemed to
12 infuriate him, and he continued his belligerent, abusive
13 behavior, and even continued-- and even started to shove
14 me, at which time two Harrisburg officers then came over to
15 to assist me.
16 And several other patients that were waiting
17 in the emergency room were forced to get up out of their
18 seats and move to another location. Security then placed
19 us into the family room or the quiet room of the hospital
20 to await registration. After approximately 35 minutes,
21 about 4:34 a.m., we were registered into the Harrisburg
22 Hospital by the receptionist.
23 Upon completion of the registration process,
24 we were placed in the First Place Health Clinic of the
25 hospital to await the arrival of a staff technologist to
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withdraw the blood and the urine. After a short period,
the staff technologist, Jennifer Smith, did come into the
First Place Health Clinic where Mr. Corwin was requested to
submit to the chemical test of his blood and of his urine.
o Officer, how was he requested to submit?
A I advised Mr. Corwin that I needed-- or I
would like to have him submit to a chemical test of his
blood and of his urine.
o You told him that?
A Yes, I did.
o What was your reason for asking for both a
blood and a urine test?
A The blood was for the legal blood alcohol
for alcohol only. And with the indicator that I observed
on the horizontal gaze nystagmus, thus being the vertical
gaze nystagmus, that's indicative, based on my training--
MR. LAUER: Objection to that, Your Honor.
He's not qualified to give an opinion as to what that HGN
test is or what it meant. I've already agreed that he
had-- for whatever reason, he could look for a urine or
blood.
THE COURT: Mr. Kabusk, with that
23 stipulation, do you need to obtain an opinion as to the
24 result?
25 MR. KABUSK: No, Your Honor.
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BY MR. KABUSK:
o Then what happened?
A Mr. Corwin again became argumentative with
me, and advised me that he wanted a drink of water. And I
again instructed him that he could not obtain water until
after I obtained a chemical test. He then advised me that
he was not going to submit to the chemical test, which
triggers the O'Connell warnings from the DL 26 form. I
removed the DL 26 form from my clipboard, filled out Mr.
Corwin's information, and then read it to him in the
presence of Jennifer Smith.
MR. KABUSK: May I approach the witness,
Your Honor?
THE COURT: Certainly.
BY MR. KABUSK:
o I'm going to show you what's marked
Commonwealth's Exhibit No.1. Would you identify what that
is?
A Yes, this is a copy of the DL 26 form with
my information that I filled out for Rodney Corwin on March
21st, 1999.
Q You stated that you read the DL 26 to him?
A Yes, I did.
Q Would you read aloud what you read to the
motorist?
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A
Yes. Please be advised--
2
THE COURT: Could you read slowly for the
3 stenographer?
4
THE WITNESS: Sure, Your Honor. I'm Borry.
5 Please be advised that you are now under arrest for Driving
6 under the Influence of alcohol or a controlled substance
7 pursuant to Section 3731 of the Vehicle Code. I am
8 requesting that you submit to a chemical test of your
9 blood/urine. I advised him, and I filled in blood and
10 urine, and circled blood and urine.
11 It is my duty, as a police officer, to
12 inform you that if you refuse to submit to the chemical
13 test, your operating privilege will be suspended for a
14 period of one year. The constitutional rights you have as
15 a criminal Defendant, commonly known as the Miranda rights,
16 including the right to speak with a lawyer and the right to
17 remain silent, apply only to a criminal prosecution and do
18 not apply to the chemical testing procedure under
19 Pennsylvania's Implied Consent Law, which is a civil not a
20 criminal proceeding.
21 You have no right to speak to a lawyer or
22 anyone else before taking the chemical test requested by
23 the police officer nor do you have the right to remain
24 silent when asked by the police officer to submit to the
25 chemical test. Unless you agree to submit to the chemical
14
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1 test requested by the police officer, your conduct will be
2 deemed to be a refusal, and your operating privilege will
3 be suspended for one year.
4 Your refusal to submit to the chemical
5 testing under the Implied Consent L~w may be introduced
6 into evidence in a criminal prosecution for driving while
7 under the influence of alcohol or a controlled substance.
S I certify that I have read the above warning to the
9 motorist regarding the suspension of their operating
10 privilege and gave the motorist an opportunity to submit to
11 the chemical test. I then signed and dated the form.
12 BY MR. KABUSK:
13 Q After you read that, what happened?
14 A Mr. Corwin again became argumentative with
15 me, this time advising that I could not deny him a right to
16 speak with a lawyer and I could not deny him an opportunity
17 to get a drink of water, and he was not going to submit to
1S the test. I then presented the form to Mr. Corwin for his
19 signature, and he reiterated that he was not going to sign
20 the form.
21 I then took the form back from Mr. Corwin
22 after he read it, signed that he had refused to sign the
23 form, and then I again asked him, having these consequences
24 in mind, would you like to submit to the chemical test?
25 Mr. Corwin again advised me that he would not submit to the
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test, and it was noted to be a refusal.
MR. KABUSK: May I approach the witness,
Your Honor?
THE COURT: Certainly,
MR. KABUSK: I provided a copy of
Commonwealth's Exhibit No. 1 to the attorney for Mr.
Corwin. I move for the admission of Commonwealth's Exhibit
No.1.
MR. LAUER:
THE COURT:
No objection, Your Honor.
All right. Commonwealth's
Exhibit 1 is admitted.
(Whereupon, Commonwealth's Exhibit No.1 was
admitted into evidence.)
BY MR. KABUSK:
Q Did the motorist submit to a chemical test?
A No, he did not.
MR. KABUSK: No further questions.
THE COURT: Mr. Lauer.
CROSS EXAMINATION
Q
Sir, I take it, the probable cause you used
was to basically refresh your recollection, correct?
A Yes.
Q Is everything in there true and correct?
A Yes.
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Q You indicatcd that my clicnt was wearing
some kind of black coat over a black t-shirt, correct?
A Yes, he was wearing an Advanced Auto Parts
bascball cap, a black jacket over a black t-shirt, a pair
of black jeans, and black boots.
Q Isn't it true, in fact, sir, that he had a
blue jean jacket on, and it was not a black coat?
A No, that's not true.
Q So the videotape at the Booking Center, if
he doesn't have a black coat on, your testimony about that
would be wrong, I guess, correct?
A He had a black coat on at the scene.
Q Okay. Well he can't change-- when he got
out of the car, he didn't go back into the car to get a
different coat on, correct?
A No, he did not.
Q So if the videotape, which is down in the
DA's office, shows a different coat on, then your testimony
about what he was even wearing would be wrong, correct?
A (No response.)
Q If he had this coat on in the video, your
testimony about what he was even wearing would be wrong,
would you agree with that?
MR. KABUSK: Your Honor, I object to the
relevance of the questioning of the color of the coat.
17
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MR, LAUER: It goes to, Judge, everything
2 that he's testifying to as to his credibility. It's what
3 the case comes down to, his word versus my client's word,
4 He wrote up an affidavit right after this incident, what he
5 was specifically wearing. We would submit that the
6 videotape will show that that is not even true, which goes
7
to the whole basis of this case.
',(
8
THE COURT: You may ask the question. We
,
9
should let the record indicate that, Mr. Lauer, you are
10 holding up a blue--
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MR. LAUER: Blue jean jacket.
12
,1;.
THE COURT: -- blue jean jacket, okay.
13 BY MR. LAUER:
14
Q
The video is in the DA's office, and we can
15 go down and get it. If it shows he had a jacket on like
16 this, your testimony about what he was even wearing would
17 be wrong, would you agree with that?
18
A
Yes, if he had that jacket on, it would be
19 wrong, because I recall a black jacket.
20
Q
In fact, you wrote up what he was supposed
21 to be wearing on the affidavit right after the arrest,
22 correct?
23
A
Yes, I do my report after the arrest.
24
Q
Okay. Now is it anywhere in your affidavit
25 of probable cause that my client attempted to shove you?
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A No, it's not.
o Is it in any of your criminal reports?
A Yes, it is.
o You did not charge him with harassment or an
attempted assault, correct?
A No, I didn't.
o Now you testified that you read him this DL
26 form, correct?
A Yes.
o Who was present when you read that to him?
A Jennifer Smith, the staff technologist.
o You didn't subpoena her to come for this
hearing, did you?
A I don't know if Mr. Kabusk did or not. I
don't see her here, no.
o Okay. Now isn't it true, you told my
client, Mr. Corwin, that, in fact, he had to sign this
form; otherwise, he was going to go to jail?
A No.
0 You never said that to him at all?
A No.
0 Is it true that after you read it to him, he
said, look, okay, I'll take the test, and you went, no,
sorry, it's too late?
A No, that's not true at all.
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o Isn't it true that at some point in time
though, it came up that he told you that he was afraid of
needles?
A I don't recall that specifically from Mr.
Corwin, no.
o Let's see if you recall this. Isn't it true
then that you asked him to take off his coat to see if he
had any tattoos? Do you recall that happening at the
police station?
A Sir, he was never taken to the police
station.
o Okay. All right. Were you with him at the
Booking Center?
A No, I take him over and drop him off, and
then I leave.
o Were you present when another officer asked
to see if he had any tattoos?
A No, sir.
Q
Okay. You were present at the Booking
20 Center for a period of time, isn't that true?
21 A Yeah, I take him over, I drop him off. The
22 booking agent searches them. I provide them with the
23 necessary information for the arrest report that I have;
24 i.e., incident number, driver'S license information. Then
25 I leave.
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Q What was the address on his driver's
license?
A I don't recall.
Q Isn't it true that the address that you have
on here for Lewisberry was not the address that was even on
his driver's license?
A I don't recall, sir.
Q Okay.
MR. LAUER: That's all the questions I have
of this officer.
THE COURT:
MR. KABUSK:
THE COURT:
Mr. Kabusk.
No further questions.
All right, You may step down.
Thank you,
MR. KABUSK: That is all the direct evidence
the Commonwealth wishes to present.
THE COURT: Mr. Lauer.
MR. LAUER: Your Honor, could I call my
client to the witness stand, please?
THE COURT: Sure.
Whereupon,
RODNEY CORWIN
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. LAUER:
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Q Mr. Corwin, would you state your name and
spell your last name?
A Rodney Corwin. CoO-RoW-IoN.
Q Rodney, on the night that you were stopped
by the police officer, tell the judge, number one, what
your medical condition was or physical condition was?
A I was very sick that night. I had bad
bronchitis and a head cold, I was on medication for-- I
take medication for anxiety and an over-the-counter Contact
medicine and liquid cold medicine.
Q Had you had anything to drink earlier?
A As I told the officer, yes-- he asked me if
I had anything to drink that night, and I told him I had
two beers at 9:00 that evening.
Q Okay. So when the officer said you told
him, you had a few, that was not correct, it was only two?
A Two.
Q Ana was this the jacket that you were
wearing that night? (Mr. Lauer was displaying a jacket.)
A Yes.
Q And were you videotaped at the Booking
Center?
A
Yes, I was.
24 Q So when the officer put in his affidavit,
25 swore under oath that you were wearing some type of black
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coat, that was not correct?
A That's not correct.
Q What else was incorrect, if you recall, at
all, in the affidavit of probable cause?
A Well, he had some-- put other charges on
there. I was always told, when you get pulled over, pull
over immediately. And I realized r was on a wrong-way
street, but being at 3:30 in the morning, there was nowhere
to park on the Main Street, so I just made that quick turn
and pulled over as soon as possible, which happened to be a
crosswalk, and he charged me with that. And he had some
other charge in there about visual-- I don't know what it's
called.
Q Well, I'll come back to that.
A Blocked vision or something.
Q When you're going down Market Street, okay,
you went past Sheetz, correct?
A Yes.
Q
A
Q
A
Q
Okay. Were your tires squealing?
No.
Could you have possibly been speeding?
I possibly could have been.
Were there-- when you go down Market Street,
24 you can't park on the right-hand side of the road, correct?
25 A Correct.
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0 So there's really no place to park except
right on the Main Street, correct?
A Exactly.
MR. KABUSK: Your Honor, I thought there was
a stipulation regarding the reasonable grounds. I was
requested to refrain from going into the facts of that, and
now he seems to be going into the very same questioning
that I was asked to refrain from going into.
MR. LAUER: Which is what I wanted to do,
and they just wanted to keep on going so-- I'm not going to
get into it long, Judge. They brought it up.
THE COURT: I think this is just a follow-up
on the questious that were asked,
BY MR. LAUER:
Q When you made the left onto the one-way
street, how far did you go down once you made that left?
A As soon as I could pullover, I did, which
happened to be at the crosswalk, at the end of the street.
Q There's no cars on the road, correct?
A Excuse me?
Q There were no other cars on the road, as far
as traffic?
A No, they were all parked.
Q When you were taken into custody after the
field sobriety tests, even at the field sobriety tests, did
24
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he ask you if you were on any medication or any illness at
the time when you were doing those tests?
A No.
Q As far as when you were taken back into
custody by the officer, tell the judge what happened when
you were taken to the hospital?
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7 A When we got to the hospital, he advised me I
8 was there for a blood test. And I told him that I have a
9 phobia of needles, and I would gladly take a breathalyzer,
10 you know, urine sample, anything. And he refused, and he
11 then said-- he showed me some kind of a paper. He said,
12 sign this paper. I said, I'm not signing anything until I
13 talk to an attorney. He said, you're not talking to
14 anybody. I said, well, why can't I speak to an attorney?
15 He then angrily said, because I said so.
16 And again, he was like, what's a public
17 defender going to do about it anyway? And he was very rude
18 to me. So, again, he asked, he said, if you don't sign
19 this paper, you're going to jail. And I didn't want to go
20 to jail, I just wanted to go home. I said, fine, I'll sign
21 it and take the test. He said, no, too late, you're going
22 to jail.
23 Q Now the officer just testified here under
24 oath that it took him at least a minute or two reading all
25 of these paragraphs, one through four, and then a, b, and
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c, Did he read to you?
A No, he didn't.
o From a form?
A No, he did not, He tried to hand me the
paper, and he just said, sign this.
o When you got to the hospital, is it your
testimony that basically-- well, first of all, did you see
this form filled out with the top information at all?
A No.
o You didn't see anything typewritten out on
there at all?
A No, I didn't.
o Is it your testimony, you recall the officer
saying, sign this form?
A Yes.
o Was the form even put into your hand?
A No. I said I would not sign it, and he just
took it away then and said, you're going to jail.
o Okay. And then you said, I don't want to go
to jail, I'll sign it?
A Exactly.
o And then back again, sir, there was no time
did he tell you that you were going to lose your license
for 12 months?
A
No, he did not.
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Q Did he tell you it would be suspended for
any period of time?
A No.
Q What was the biggest concern of the officer
when you were at the hospital initially?
A To get me to sign that form to take my blood
or else take me to jail. That's all he was worried about,
Q He did mention going to jail?
A Oh, yes, several times.
Q When yo~ came to my office initially after
you were charged with the DUI, did you fill out a form for
me and write that information up?
A Yes, I did.
Q And did he actually tell you that he wanted
to take urine from you as-- and blood?
A He just said that he wanted the blood.
Q Okay. You had no prior DUI's on your
record, correct?
A No.
Q The officer testified here under oath that
you attempted to shove him?
A That is not true.
Q Did you push at him or do anything like that
at all?
A
Nothing. Never even came close to touching
27
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1 him.
2 Q I mean, he had a gun on and all that stuff?
3 A Yeah, exactly, and he was trying to be very
4 intimidating to me, He was talking down to me.
5 Q He said that you were belligerent. How were
6 you belligerent?
7 A I guess because I asked to speak to an
8 attorney. That really upset him. He said, like I had said
9 before, what's a public defender going to do about it? He
10 was just very rude.
11 Q The officer, when he just testified that
12 there was a nurse present when he read all this information
13 to you, was the nurse standing right there?
14 A No, she had come in to take blood, and when
15 I said I wouldn't sign the paper, that was it. He just
16 snapped and said, you're going to jail. And she left the
17 room. And he took me away.
18 MR. LAUER: That's all the questions I have,
19 Your Honor.
20 THE COURT: Mr. Kabusk.
21 CROSS EXAMINATION
22 BY MR. KABUSK:
23 Q Mr. Corwin, do you recall being stopped by a
24 police officer on March 21st, 1999?
25
A
Yes.
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o Do you recall being placed under arrest for
DUI?
A Yes.
o Do you recall being handcuffed and
transported to the Harrisburg Hospital?
A Yes.
o Do you recall being requested to submit to a
chemical test?
A No. His exact words were, sign this paper,
so we can take blood. That's what he said.
o You're saying, he never asked you to take a
test?
of paper.
said, no,
A No.
o What are you saying?
A I'm saying, he tried to hand me that piece
He said, sign this so you can give blood. And I
because I wanted to speak to an attorney. And he
said, no.
o Do you recall being warned of the
consequences of refusing to submit to a chemical test?
A No.
Q Do you recall being provided any warnings
regarding your Miranda rights or that you have no right to
speak to an attorney or something like that?
A No.
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o Did you submit to a chemical test?
A No.
o Now YOll admitted earlier that you were on
medicines and-- is that true?
A Yes.
o And you also admitted that you had been
drinking earlier, is that true?
A Yes.
Q Did you tell the officer that you had any
sort of medical conditions?
A I believe I did, yes. I told him I was very
sick that day. It was two blocks from where I was spending
the night. And he didn't want to hear it.
Q Now did you submit to a chemical test?
A No.
Q Did you tell the officer you were not going
to submit to a chemical test?
A No.
Q You did not tell him you wanted to speak to
an attorney?
A Yes.
Q You told him that?
A Yes.
Q Did you tell him that you wanted to speak to
an attorney before you submitted to the test?
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No, I said, before I sign anything.
Did you tell him you had a fear of needles?
Yes.
Do you recall the officer reading to you the
DL 26 form, which he read earlier during his testimony?
A No.
MR. KABUSK: No further questions.
THE COURT: Mr. Lauer.
MR. LAUER: Just a few, Your Honor.
REDIRECT EXAMINATION
BY MR. LAUER:
Q The question I want to give you is not
whether you recall it happening, the question is, did it
happen? Did the officer read any of that information from
the DL 26 form?
A No, he didn't.
Q Did the officer read you your Fifth
Amendment rights, Miranda warnings?
A No.
Q Okay. Did the officer tell you that you
were going to lose your license for 12 months or any time?
A No.
Q If I have it correct then, it wasn't that
you didn't refuse, you just said you wanted to talk to a
lawyer?
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A Exactly.
o At one point though, you said you would sign
it, once the officer said, if you didn't sign it, you were
going to go to jail?
A Yes.
o Did you then tell the officer, look, I'll
take the test?
A Yes, I did.
o And his statement was, too late, too bad,
something like that?
A Yes.
o What's a public defender going to do about
it?
A
Exactly.
MR. LAUER:
THE COURT:
MR. KABUSK:
THE COURT:
That's all the questions I have.
Mr. Kabusk.
Nothing further.
Okay. I think the officer
testified that because of the commotion, you were asked to
go into some sort of family room, because other patients
were being disturbed. Do you recall anything like that?
THE WITNESS: No. Once we got in there, he
put me-- they just-- he led me into some room, and that's
where I stayed the whole time.
THE COURT: So you didn't change rooms
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because of commotion?
THE WITNESS: No.
THE COURT: Okay. Anything further by
counsel?
MR. LAUER: No, Your Honor, no questions of
this witness.
MR. KABUSK:
THE COURT:
Nothing further.
Okay. You may step down.
Thank
you,
MR. LAUER: Judge, the only other evidence
we would have, and I don't want to take up too much of the
Court's time here today, if the Commonwealth has no
objection, is, at the Court's leisure, to look at least at
the videotape. The only reason for the videotape is to see
what he was wearing, and that's it, which would go to the
credibility issue of the officer.
THE COURT: Do you have that here?
MR. LAUER: That's at the District
Attorney's office, Your Honor.
THE COURT: Well, I don't mind taking a few
moments and doing that, if there's no objection,
MR. KABUSK: No objection.
THE COURT: Okay.
MR. KABUSK: I mean, I don't see the
relevance, but I made the objection earlier, and --
33
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1 THE COURT: Okay. We'll take a short
2 recess.
3 MR. LAUER: Does the Court want me to get
4 that video and bring it up then?
5 THE COURT: I think we'll need to look at it
6 in court, and it will have to be made an exhibit if you
7 want it to be made part of the record.
a MR. LAUER: Yes, Your Honor. I'll just run
9 down there and get that.
10 THE COURT: Court is in recess.
11 (Whereupon, a recess was taken at 10:14 a.m,
12 and proceedings reconvened at 10:26 a.m.)
13 MR, LAUER: Your Honor, the angle of the
14 tape, at least from my client's standpoint, does not show
15 that coat. We do have one witness to corroborate my
16 client's testimony.
17
1a
THE COURT: All right.
MR. LAUER: Mr. Richard Corwin.
19 Whereupon,
20 RICHARD CORWIN
21 having been duly sworn, testified as follows:
22 DIRECT EXAMINATION
23 BY MR. LAUER:
24 Q Mr. Corwin, would you state your name and
25 spell your last name, please?
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A Richard Corwin. CoO-RoW-IoN.
0 And you are Rodney's father, correct?
A Pardon me?
0 This is your son, Rodney?
A Yes, sir.
0 Did you pick your son up at the Booking
Center the morning after he was arrested?
A Yes, sir.
o On the morning he was arrested?
A Yes, sir.
o Can you tell the Court what type of clothing
he had on as far as when you picked him up as far as jacket
goes?
A He had dark pants, and he had a blue jean
jacket.
Q Was it the blue jean jacket, just like the
one he hall here?
A Yes, sir.
Q The officer said that, at least his
testimony was, he was wearing a black jacket. That was not
correct?
A
No, he did not have a black jacket.
MR. LAUER: That's all the questions I have.
THE COURT: Okay. Mr. Kabusk.
MR. KABUSK: No questions.
35
"'
~
1
THE COURT: You may step down. Thank you,
2
MR. LAUER: We have no further defense
3 testimony, Your Honor,
4
THE COURT: All right. Mr. Kabusk.
5
MR. KABUSK: Nothing further, Your Honor.
6
THE COURT: We'll enter this order.
7 (Whereupon, the following Order of Court was
8 entered,
9 ORDER OF COURT
10 AND NOW, this 6th day of October, 1999, upon
11 consideration of the Appellant's Appeal of License
12 Suspension at which the issue for determination by the
13 Court was whether the Appellant validly refused to submit
14 to a chemical test, and following a hearing, the record is
15 declared closed, and the matter is taken under advisement.
16 By the Court,
17 /s/ J. Wesley Oler, Jr.
J.
18
19
THE COURT: And I'll enter an order later
20 today.
21
MR. LAUER: Thank you, Your Honor.
22
THE COURT: Okay. Thank you.
23
(Whereupon, the proceedings concluded at
24
10:29 a.m.)
25
36
.
,
~
'~
~
----
r
C E R T I F I CAT ION
I hereby certify that the proceedings
~&lJeJ- ~_~i~- o<~
wendy . ~ngef (
Offici 1 ourt e rter
are contained fully and accurately in the notes taken
by me on the above cause and that this is a correct
transcript of same.
The foregoing record of the proceedings
on the hearing of the within matter is hereby
approved and directed to be filed.
_.QQ~.Ll.9-rl1iL_-
Date
-~L~-~(zt:L-----._---
[y'wesley ~~, Jr., J.
37